CURTIS FREEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in denying the motion for judgment of acquittal for trespass because the area was not proven to be enclosed curtilage.
Curtis Freeman was convicted of possession of cocaine and trespass. The trespass occurred in front of an abandoned apartment building.…
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PER CURIAM.
Curtis Freeman, the appellant, was convicted, following a jury trial, of possession of cocaine (count I) and trespass in a structure or conveyance (count II). On appeal, Freeman contends, and the State concedes, that the trial court erred in denying his motion for judgment of acquittal with respect to the trespass charge.
In the instant case, it was undisputed that Freeman and others were standing in front of an abandoned apartment building. Thus, Freeman’s conduct can be characterized as trespass in a structure or conveyance only if the area surrounding the building is considered “curtilage.” See §§ 810.011(1), 810.08(1), Fla. Stat. (1997). The Florida Supreme Court has held, in the context of the burglary statute, that in order for an area surrounding a residence to be curtilage, “some form of an enclosure” is required. State v. Hamilton, 660 So. 2d 1038, 1044 (Fla.1995). This enclosure requirement has since been extended to the trespass statute. See L.K.B. v. State, 677 So. 2d 925 (Fla. 5th DCA 1996). Here, the State failed to present evidence that the area in front of the abandoned apartment building was enclosed in any manner. Accordingly, we reverse Freeman’s conviction for violation of section 810.08(1), trespass in a structure or conveyance. We note, however, that contrary to the suggestions contained in the initial brief, our reversal of Freeman’s conviction does not equate to a finding that his arrest (and the subsequent search) was unlawful.
WARNER, C.J., STONE and STEVENSON, JJ., concur.
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B.W. v. State, 973 So. 2d 657 (Fla. 3d DCA 2008)…concedes, the adjudication cannot stand because the stairway, which was plainly not within the “structure” itself, was also, contrary to the trial court’s belief, not within its “curti-lage,” so as to justify such a conviction. See Freeman v. State, 743 So. 2d 603 (Fla. 4th DCA 1999); L.K.B. v. State, 677 So. 2d 925 (Fla. 5th DCA 1996). The state bravely suggests that B.W. was actually guilty of “trespass on property other than a structure or conveyance after warning.” This claim however, is entirely unavai…
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Ruiz v. State, 23 So. 3d 208 (Fla. 4th DCA 2009)…ding that because both burglary and trespass rely on the definition of “structure” found in section 810.011(1), there is no basis to limit Hamilton to burglary cases); see also B.W. v. State, 973 So. 2d 657, 658 (Fla. 3d DCA 2008); Freeman v. State, 743 So. 2d 603, 603 (Fla. 4th DCA 1999). In the instant case, it is undisputed that neither party contended the parking lot was enclosed. Therefore, we reverse Ruiz’s judgment of conviction for trespass in a structure or conveyance and sentence. Reversed and rem…
Authorities Cited
- State v. Hamilton, 660 So. 2d 1038 (Fla. 1995)
- L.K.B. v. State, 677 So. 2d 925 (Fla. 5th DCA 1996)